Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA339728 William Sterling, Judge.
Darryl O. Dickey, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Appellant James Packard appeals from a judgment entered after a jury found him guilty of possession of cocaine base. (Health & Saf. Code, § 11350, subd. (a).) The jury found true that appellant had suffered a prior serious or violent felony conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). The jury also found true that appellant had served three prior prison terms within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced appellant to six years in state prison, consisting of the upper term of three years for possession of cocaine base, doubled pursuant to sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
We affirm.
CONTENTIONS
Appellant contends that: (1) the trial court abused its discretion by excluding certain witness testimony; (2) the trial court erred in failing to instruct the jury with CALCRIM No. 224; (3) he was denied due process of law by the late amendment of the information and the late disclosure of a laboratory test result; (4) he was denied due process of law when he was ordered to remain in shackles; and (5) this court must conduct an independent review of the sealed transcript of the hearing conducted pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTS AND PROCEDURAL HISTORY
On April 26, 2008, at 1:30 a.m., Los Angeles Police Department Officer Thomas Denton (Officer Denton) was assigned to a drug task force downtown. He and his partner Officer Brian Indreland (Officer Indreland) were working in plainclothes in an unmarked police car at the intersection of Winston and Los Angeles Streets, an area of high-volume narcotics transactions.
Officer Denton, but not Officer Indreland, testified at trial. Officer Denton testified that because of undercover police activity, drug dealers often made drug buyers show a pipe before buying cocaine. Or, they made them smoke the cocaine in their presence. Officer Denton testified that he noticed Michael Jackson (Jackson), Wanda Salters (Salters) and a man identified as Dial appear to be engaged in drug transactions. Officer Denton watched people approach Jackson and give him money in exchange for small, off-white solids from Jackson or Dial. After getting approving nods from Jackson and Dial, Salters also handed a man an off-white solid in exchange for money, which she put in a side pocket.
Officer Denton testified that Officer Indreland called for additional officers on his cell phone. While he was on the phone, appellant approached Salters and held up some money. Salters shook her head no. Appellant then took out a glass cylinder resembling a pipe. Salters then took appellant’s money and handed appellant an off-white solid from a clear baggie in her hand.
Uniformed police officers in marked cars moved in to detain the suspects. Upon being detained, Salters tossed the baggie containing off-white solids to the ground where it was retrieved by a police officer. The solids were later determined to be cocaine base. Appellant, Jackson, and Dial were also detained. Officer Denton searched appellant and recovered a charred glass pipe containing an off-white solid that was later determined to be cocaine base. A search of Salters’ left pocket revealed $70. A search of Jackson revealed $60 and a baggie containing what was later determined to be cocaine base. Officer Denton testified that either he or his partner booked the items into evidence and that “we booked all evidence together.” At another point, Officer Denton testified that he booked all the physical evidence in the case and that his partner was there when he was booking the evidence. Officer Denton stated that he, and not Officer Indreland, had control of the items. As a matter of practice, Officer Indreland usually reviewed the contents of the evidence envelopes and the descriptions on the envelopes, and Officer Denton sealed them.
In appellant’s defense, John Green, a forensic fingerprint consultant, testified that he had examined the cylindrical glass pipe recovered from appellant and found no fingerprints on it. Codefendant Salters introduced into evidence the testimony of John Rankins (Rankins) and Lonnie Callahan (Callahan). Rankins testified that he had been arrested by Officers Denton and Indreland in May 2008. As he was watching a movie production downtown, police officers skidded into him with their marked police car. He was detained and arrested for sale of cocaine. Rankins’ cash, phone clip, and an 18-carat gold ring with a diamond chip were taken from him. He later filed a complaint against the officers who had arrested him. He testified that he pled guilty to sale and possession for sale of cocaine base but that Officer Denton falsely stated in the police report that Rankins had dropped drugs to the ground. He also stated that only $26 of the $76 on his person was put into the evidence envelope and returned to him. Rankins testified that Officer Indreland was also involved. Callahan testified that in March 2008, Officer Denton arrested him for possession of narcotics and narcotics paraphernalia. He claimed that a female officer detained him as he was walking with a group of people. She told him to put his hands against a wall, flipped over a piece of cardboard that was lying on the sidewalk near him, and found a glass pipe. He testified that Officer Denton’s report falsely stated that he saw Callahan lying on the sidewalk. Officer Denton also falsely reported that Callahan put a charred glass pipe under a piece of cardboard.
Salters is not a party to this appeal.
DISCUSSION
I. The trial court did not abuse its discretion by excluding the testimony of Officer Indreland
Appellant contends that the trial court violated his due process rights when it refused to allow appellant to call Officer Indreland or allow Pitchess witnesses to testify about Officer Indreland’s previous conduct. We disagree.
A criminal defendant has a right to present a defense. (Washington v. Texas (1967) 388 U.S. 14, 19.) However, the trial court retains discretion to admit or exclude defense evidence under Evidence Code section 352. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) “‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to present a defense. Courts retain... a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]... [T]his principle applies perforce to evidence of third-party culpability....’” (Ibid.) The trial court’s decision to exclude evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.)
“A criminal defendant, on a showing of good cause, is entitled to discovery of information in the confidential personnel records of a peace officer when that information is relevant to defend against a criminal charge. (Pen. Code, § 832.7; Evid. Code, § 1043 et seq.;see[Pitchess].)” (People v. Gaines (2009) 46 Cal.4th 172, 176.) Here, pursuant to a Pitchess hearing, appellant was provided discovery of five witnesses, three of whom concerned Officer Indreland. The People did not intend to call Officer Indreland because he did not recover the cocaine from appellant.
Appellant’s trial counsel stated that she planned to call Officer Indreland to impeach Officer Denton’s testimony that Officer Denton booked all the evidence. She stated that appellant’s defense was the narcotics recovered from Dial could have been planted on appellant by Officer Indreland. The trial court reserved ruling on the admission of the proposed impeachment evidence and whether appellant could call Officer Indreland as a witness. At a subsequent hearing, the trial court ruled that because Officer Indreland was not going to testify, it would not allow the Pitchess witnesses to testify as to Officer Indreland. The trial court allowed the defense to present Pitchess witnesses with respect to Officer Denton.
Dial pled guilty and was not a codefendant in appellant’s trial.
At the close of the People’s case-in-chief, defense counsel made an offer of proof that she wanted to present the two Pitchess witnesses who would testify that Officer Indreland falsely stated that glass pipes were found on them. Defense counsel said that she wanted to put Officer Indreland on the stand to testify that he, rather than Officer Denton, booked the evidence. Then she intended to impeach him with the Pitchess witnesses. The trial court excluded the proposed testimony on the basis that its probative value did not outweigh the likelihood that it would confuse the jury.
We find that the trial court did not abuse its discretion in refusing to allow Officer Indreland and the Pitchess witnesses to testify. The relevance of the proffered testimony was slight. Officer Denton testified that he saw appellant buy drugs from Salters in a hand-to-hand transaction. He testified that he searched appellant and he was the one who found the drugs in appellant’s pocket. The proffered testimony of Officer Indreland concerned the peripheral issue of which officer booked the evidence recovered. Even if Officer Indreland testified that he booked the evidence, that testimony would not have meaningfully contradicted Officer Denton’s testimony that Officer Indreland reviewed the contents of the evidence envelopes and the descriptions written on the envelopes before Officer Denton sealed them, and that Officer Denton had control of the evidence and booked it with Officer Indreland at his side. Thus, the proffered testimony of the Pitchess witnesses, that Officer Indreland had falsely stated that he had found glass pipes on them, was only marginally relevant to Officer Denton’s credibility with respect to the booking of evidence. In his reply brief, appellant suggests that the testimony of Officer Indreland was critical because he had the means to plant the cocaine. However, the evidence shows that Officer Denton recovered the cocaine from appellant’s person, had control of it, and booked it into evidence.
The trial court did not abuse its discretion in concluding that Officer Indreland’s testimony and the testimony of the Pitchess witnesses was only peripherally relevant and slightly probative of Officer Denton’s credibility, but very confusing to the jury and unduly consumptive of time.
Nor is it reasonably probable that the jury would have reached a result more favorable to appellant had the trial court admitted the testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.) Salters presented the testimony of Rankins and Callahan, who testified that Officer Denton fabricated evidence and made false statements in a police report. Rankins also testified that Officer Indreland was involved. The jury therefore was presented with evidence impugning Officer Denton’s credibility and it is not reasonably probable that had the defense evidence been presented, he would have received a more favorable verdict.
We conclude the trial court did not err in refusing to admit the testimony of Officer Indreland or the Pitchess witnesses.
II. The trial court did not err in failing to instruct the jury with CALCRIM No. 224
Appellant contends that the trial court should have instructed sua sponte with CALCRIM No. 224 regarding the sufficiency of evidence for evaluating circumstantial evidence. He claims the trial court abused its discretion in denying his motion for a new trial based on the failure to give that instruction. We disagree.
We first note that “[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]” (People v. Hart (1999) 20 Cal.4th 546, 622.) Here, the trial court gave CALCRIM No. 223, which differentiates between direct and circumstantial evidence. However, appellant did not request CALCRIM No. 224 and therefore has waived the issue on appeal. (People v. Hart, supra,at p. 622 [party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language].) Moreover, failure to properly instruct is not a ground for relief under which a court may grant a new trial. (§ 1181.)
CALCRIM No. 223 provides: “Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.”
In any event, we find that the trial court did not err in failing to instruct with CALCRIM No. 224. Health and Safety Code section 11350, subdivision (a) criminalizes possession of controlled substances. “The essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character.’” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) CALCRIM No. 224 must be given sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt. (People v. Marquez (1992) 1 Cal.4th 553, 577.) Where the People’s case rests substantially on direct evidence, that instruction need not be given. (Ibid.) Thus, “[t]he fact that the elements of a charged offense include mental elements that must necessarily be proved by inferences drawn from circumstantial evidence does not alone require an instruction on the effect to be given such evidence....” (People v. Wiley (1976) 18 Cal.3d 162, 175 (Wiley).) In the Wiley case, the defendant testified that her brother beat and killed her husband while helping her retrieve money stolen from her by her husband. The day before the murder, she told police officers that if they did not help her get her money back, she was going to kill her husband. (Id. at p. 166.) The court held that “the instructions were unnecessary because the People did not ‘substantially rely’ on circumstantial evidence, and... the evidence as to the mental elements of murder was either direct evidence, or if circumstantial was not equally consistent with a rational conclusion that [the defendant] was innocent of murder under either of the theories pursued by the People.” (Id. at p. 175; People v. Malbrough (1961) 55 Cal.2d 249 [no suggestion that instructions on circumstantial evidence were necessary because the defendant’s intent to permanently deprive the victim of his property had to be inferred from the circumstances of the taking].)
CALCRIM No. 224 provides: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
Here, the People relied substantially on direct rather than circumstantial evidence to prove that appellant possessed a controlled substance. “‘[D]irect evidence’ means evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.” (Evid. Code, § 410.) Officer Denton testified that he saw appellant give money to Salters after he displayed a cocaine pipe. Salters then gave appellant an off-white solid that turned out to be cocaine base. Immediately after the transaction, Officer Denton searched appellant and found a piece of cocaine base inside a glass pipe in appellant’s pocket. Direct evidence in the form of Officer Denton’s testimony established that appellant displayed a glass pipe to Salters and received rock cocaine in exchange for money. The People relied primarily on direct evidence and the nature of the circumstantial evidence was not consistent with a reasonable conclusion that appellant was innocent of the intent to possess a controlled substance. Accordingly, the trial court was not required sua sponte to give CALCRIM No. 224.
Nevertheless, appellant contends that the failure to give CALCRIM No. 224 was prejudicial because it “deprived [him] of his right to have the jury properly find all of the elements of the offense beyond a reasonable doubt.” We disagree. Appellant was also instructed with CALCRIM No. 220, that the People must prove a defendant guilty beyond a reasonable doubt and that “in deciding whether the People have proved any charge against any defendant beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves a defendant guilty beyond a reasonable doubt, he or she is entitled to an acquittal and you must find him or her not guilty.” We presume the jury followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 453.)
We conclude that the trial court did not err in failing to instruct the jury sua sponte with CALCRIM No. 224.
III. Appellant was not denied due process of law by the amendment of the information combined with the late disclosure of the results of the third drug test
Appellant contends that the following errors combined “to cause an unintended result that demands reversal”: (1) the late amendment of the information to allege that appellant possessed cocaine base rather than cocaine; and (2) the late disclosure of a third laboratory test result confirming that the substance found in the glass pipe was cocaine base. We disagree.
“Section 1009 provides a trial court may allow amendment of an information ‘at any stage of the proceedings,’ and the trial shall continue unless the defendant’s substantial rights would be prejudiced, in which event the court may grant a postponement.” (People v. Miralrio (2008) 167 Cal.App.4th 448, 458.) Section 1009 also states: “[a]n indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.” We review the trial court’s decision to allow an amendment for abuse of discretion. (People v. Miralrio, supra,at p. 458.)
The record shows that appellant’s trial counsel was aware at least from the time of the preliminary hearing that the People sought to prove that appellant was found to possess cocaine base. At the preliminary hearing, Officer Denton referred to the off-white solid object found in appellant’s pocket as “anywhere from a $5 to $10 piece of cocaine base.” Although appellant’s trial counsel objected on the ground that there was no foundation as to the cocaine base, she acknowledged that “there will be a stipulation later on.” When the trial court stated that Officer Denton needed to assume the existence of the cocaine base in order to place a value on the substance, appellant’s trial counsel replied, “That is fine, your Honor. There is a stipulation anyways.” Appellant’s trial counsel subsequently questioned the officer about recovering items resembling cocaine base from other individuals and stipulated that item No. 1 booked into evidence contained.37 grams net of cocaine base for the purpose of the preliminary hearing.
At trial, after the defense rested, the People made a motion to amend the information to charge appellant with possession of cocaine base rather than cocaine. Appellant’s trial counsel objected to the amendment as untimely but admitted that there was never a question in her mind that the substance involved was cocaine base and that she had believed the People would not be able to prove the cocaine allegation. The People represented that the first two laboratory reports and the preliminary hearing testimony reflected that cocaine base was found on appellant. Thus, appellant was given notice of the charged offense and his due process rights were not violated. (People v. Peyton (2009) 176 Cal.App.4th 642, 658 [information need not notify a defendant of all the particulars of the crime charged because the preliminary hearing transcript affords notice of the time, place and circumstances of charged offenses and is the touchstone of due process notice to a defendant].)
Nor did the late disclosure of the third laboratory report prejudice appellant. At trial, on December 8, 2008, an expert witness testified on behalf of the People that she had performed three tests on the substance found in appellant’s pocket. Appellant’s trial counsel objected to admission of the third confirmatory test, stating that appellant had not received the results of the test conducted on November 24, 2008. She stated that even though she had received the results of the initial tests and did not then consult an expert, appellant was prejudiced due to “surprise,” and a “lack of an opportunity to get [his] own expert to try to dispute [the expert’s] findings.” The trial court admitted the evidence, stating that it would give an instruction regarding untimely disclosure of evidence to the jury.
The trial court instructed the jury with CALCRIM No. 306 as follows: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] The prosecution failed to disclose: the third test, performed by Chrissy Su, that is, the lab results of the Instrumental Analysis performed on November 24, 2008, including its supporting documentation and graphs. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
Appellant claims on appeal that by the time the third test was disclosed it was too late for him to have an expert test and calibrate the equipment or assist in preparing the defense of that issue. He further claims that the instruction could not restore his opportunity to accept the plea tendered prior to trial.
We conclude that the late disclosure did not prejudice appellant. As noted, the jury was admonished that it could consider the effect of the late disclosure of the third test on appellant’s ability to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. Furthermore, appellant had received the results of the first two tests but did not then consult an expert. Nor did he request a continuance to consult an expert when he became aware of the results of the third test. Appellant complains that he was denied the ability to sufficiently evaluate the pretrial plea offer by the People because of the late amendment of the information combined with the late disclosure of the third test. We are not convinced that the challenged amendment and disclosure affected appellant’s decision to reject the plea offer. Appellant is not assisted by his citation to People v. Mancebo (2002) 27 Cal.4th 735, 754, in which our Supreme Court held that “the trial court erred at sentencing when it purported to substitute the unpled multiple victim circumstances for the properly pleaded and proved gun-use circumstances in support of the One Strike terms.” It recognized that “a defendant’s decision whether to plea bargain or go to trial will turn on the extent of his exposure to a lengthy prison term,” where “the defendant would not be informed in advance of trial or sentencing that the prosecution intends to rely on the fact of convictions of offenses against multiple victims in support of a harsher One Strike term.” (Id. at p. 752.) Here, the sentence range was not affected by the late amendment or the late disclosure of the test result. As previously stated, appellant was aware at the time of the preliminary hearing that cocaine base was at issue, and as soon as he was given the results of the first positive test of the cocaine base, appellant could have retained an expert.
We conclude appellant was not denied due process of law by the amendment of the information combined with the late disclosure of the results of the third drug test.
IV. Appellant cannot claim error for being shackled during trial
Appellant contends that when he requested that he be allowed to appear in jail blues, the trial court abused its discretion in ordering that appellant also remained shackled.
First, appellant requested that he appear in shackles and jail blues because he wanted “the jury panel to see the reality of this.” The trial court questioned appellant’s trial counsel, the bailiff, and appellant to determine if he wanted to appear both in jail blues and in shackles. When the trial court asked “You want to be in jail blues with the chains?,” appellant replied “yes.” Subsequently, appellant requested and was granted permission to have his hands uncuffed. Having requested the shackles, appellant cannot complain now on appeal. “It is settled that the use of physical restraints in the trial court cannot be challenged for the first time on appeal.” (People v. Tuilaepa (1992) 4 Cal.4th 569, 583.) A failure to object and make a record below waives the claim. (Ibid.)
V. The Pitchess hearing
Appellant acknowledges that the trial court determined that there was some discoverable material during the Pitchess hearing but requests that we review the sealed transcript of the Pitchess hearing to determine if other police personnel record documents were incorrectly withheld. Our review shows that the trial court did not abuse its discretion.
As previously stated, “[a] criminal defendant, on a showing of good cause, is entitled to discovery of information in the confidential personnel records of a peace officer when that information is relevant to defend against a criminal charge. (Pen. Code, § 832.7; Evid. Code, § 1043 et seq.; see[Pitchess].)” (People v. Gaines, supra, 46 Cal.4th at p. 176.) “If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed.” (Id. at p. 179.) “Subject to certain statutory exceptions and limitations (see Evid. Code, § 1045, subds. (b)-(e)), ‘the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.”’” (Gaines,at p. 179.) A trial court’s decision on the discoverability of material in police personnel files is reviewable under an abuse of discretion standard. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
Following the hearings related to the Pitchess motion, the court ordered production of witnesses who made complaints against Officer Denton and Officer Indreland pertinent to appellant’s defense. We have reviewed the sealed transcripts of the trial court’s in camera hearing and the Pitchessmaterials, and conclude that there is nothing in the materials that would lead us to find an abuse of discretion by the trial court.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.